Exhibit 10.28
[ Letterhead of Israel Land Administration ]
[ Letterhead of the Israel Land Administration ]
# File No.: 20784707A
# Account No.: 352687495
DEVELOPMENT CONTRACT
# Capitalized
Entered into and signed in _______________ on the 7th of December, 1998
on the ____ of __________, ______
Between
# The Israel Land Administration, which manages the lands of the State of
Israel, the Development Authority and the Jewish National Fund
(hereinafter: the "Administration"), whose address for the purpose of
this contract is: Government Campus, Upper Nazareth, zip code 17105,
P.O.B. 80 of the first part;
And
# On Track Innovations Ltd. I.D./Company No. 520042862
# (hereinafter: the "Entrepreneur"), whose address for the purpose of this
contract is: P.O.B. 32, Rosh Pina, of the second part;
Preamble
constituting an integral part of the terms and conditions of the development
contract attached hereto, and which only together constitute the contract.
Whereas the terms used in this contract shall be interpreted in
accordance with the following recitals, unless the context of the
contract prescribes otherwise:
"Lot": the lot described in the plan attached hereto as an integral part of this
contract, the details of which are as follows:
# Location: Rosh Xxxx Area: approximately 6,500 m2
# Registered block: 13953 Parcels: 59 (in part), 62 (in part), 63 (in
part), 65 (in part), 66 (in part), 67 (in part), 68 (in part), 73 (in
part)
# Lot(s) No. 117, No. 118, No. 119, No. 17/4 pursuant to Detailed Zoning
Plan No. G/BT/300
[ Stamp of On Track Innovations Ltd. and signature ]
[ Letterhead of Israel Land Administration ]
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# "Buildings": High-tech computer plant
# "Development Period": 36 months, starting on the Date of Approval of the
Transaction and ending on October 1, 2001.
# "Date of Approval of the Transaction": the date on which the transaction
contemplated in this contract is approved by the Administration's
management, namely September 15, 1998.
# "Purpose of the Allocation": industry and crafts - high-tech plant.
"Designation": in accordance with the aforementioned plan, namely:
# industry and crafts.
# "Rate of Utilization": the construction capacity permitted under the
aforementioned plan, namely ___ % per floor, on 3 floors, totaling ___%,
constituting ___ rooms/units and amounting to 6500.0 constructed m2.
# "Basic Value of the Lot": the value of the Lot as of the Date of
Approval of the Transaction, namely NIS 734,660.91.
# (Seven hundred and thirty four thousand, six hundred and sixty NIS + 91
Agorot).
"Basic Index": the latest consumer price index known on the Date of
Approval of the Transaction.
"Consideration":
# The sum of NIS 227,744.88. This payment shall be deemed as payment for
the annual capitalized usage fee for using the Lot during the Term of
the Lease, as defined in the attached long-term lease contract.
For the removal of doubt, the Entrepreneur shall pay value added tax as set out
in the law as imposed on each one of the foregoing payments in accordance with
the rate of the value tax on the date of payment thereof.
# "Date for Submittal of the Plans": no later than 9 months after the Date
of Approval of the Transaction.
# "Date for Commencement of Construction": no later than 18 months after
the Date of Approval of the Transaction.
# "Date for Completion of the Foundation Casting": no later than August 1,
2000.
[ Stamp of On Track Innovations Ltd. and signature ]
[ Letterhead of Israel Land Administration ]
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# "Date for Completion of the Frame": no later than July 1, 2001.
"Date for Completion of the Construction": the date of termination of
the Development Period.
# Whereas the State of Israel / the Development Authority is the owner of
the Lot; and
Whereas the Administration will be prepared to lease the Lot to the
Entrepreneur on the condition precedent that, and only after, the
Entrepreneur develops the Lot and constructs the Buildings
thereon within the Development Period, to be used for the Purpose
of the Allocation and provided that it fulfills all the other
conditions of this contract; and
Whereas the Administration is prepared to make the Lot available to the
Entrepreneur only for the Development Period, and only for the
construction of the Buildings for the Purpose of the Allocation
pursuant to the Designation and the Rate of Utilization, all as
defined above, and the Entrepreneur agrees to accept the Lot
under the said conditions; and
Whereas the Entrepreneur declares hereby that it is subject to no
limitation regarding its engagement in this development contract
with the Administration pursuant to the provisions of Section
12(c) of this development contract, and that it is aware that the
Administration is prepared to enter into this development
contract therewith only upon this fundamental condition
precedent; and
#Whereas pursuant to the provisions of the treaty between the State of
Israel and the Jewish National Fund (hereinafter: the "Fund"),
published in Official Gazette No. 1456 of Sivan 11, 5728, p.
1597, the management of land owned by the Fund, including the
surrender of possession and the leasing thereof, shall be
performed by the Administration subject to the Fund's memorandum
and articles of incorporation, and the Entrepreneur hereby
declares that it is aware that if the Lot, in whole or in part,
is owned by the Fund, or will be owned by the Fund, it shall be
subject to the provisions of the said treaty, and that the
Administration is prepared to enter into this contract therewith
only upon this fundamental condition precedent; and
Whereas if the Entrepreneur is recognized by the Administration as a
Contractor, as defined in Subsection 3(e) of this contract, the
Administration will agree that it will be entitled, within one
year only from the end of the Development Period, to transfer its
rights to the entity for whom the Entrepreneur shall have
constructed Buildings or apartments on the Lot, subject, however,
to the provisions of Subsection 3(e) of this contract and
provided that if the Purpose of the Allocation is industry,
crafts or tourism, a recommendation shall be given by the
Ministry of Industry and Trade, or the Ministry of Tourism, as
the case may be, for the said transfer of rights; and
[ Stamp of On Track Innovations Ltd. and signature ]
[ Letterhead of Israel Land Administration ]
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Whereas if the Entrepreneur comprises more than one person or
corporation, the undertakings of the persons or corporations
constituting the Entrepreneur shall be joint and several, whereas
their rights under this contract shall be joint only; and
#Whereas in addition to the following terms and conditions of the
development contract, the following special conditions shall
apply:
# The Entrepreneur is aware that the recommendation of the Ministry
of Industry and Trade for an exemption from a tender provides
that the minimum main area for construction shall be 2,600 m2.
The construction of 2,600 m2 shall be deemed by the
Administration as the fulfillment of the terms and conditions of
the development agreement and shall enable the conversion thereof
into the lease contract. All of the foregoing shall be in
addition to the fulfillment of the other terms and conditions of
the transaction.
***
The allocation is based on Plan G/BT/300 which enables maximum
utilization at the rate of 100% on 3 floors, including 20% for
service areas.
Therefore, this development contract has been entered into and signed in
accordance with the provisions of this preamble and of the following terms and
conditions of the development contract:
Parties' signature The Administration The Lessee
in initials: [Stamp of the Administration and [Signature and stamp of
stamp and signature of On Track Innovations Ltd.]
Bar Xxxxxx Xxxxx,
District Transaction Commissioner,
Northern District ]
Terms and Conditions of Development Contract
1. The preamble and documents attached to the contract
The preamble and the documents attached to this contract constitute an
integral part hereof.
2. Purpose and period of the development authorization
The Administration hereby makes the Lot available to the Entrepreneur
and the Entrepreneur hereby accepts the Lot, for the Development Period
only, for the development thereof and for the construction of the
Buildings in accordance with the preamble to this contract and with the
Plans to be approved by the Administration and the competent
authorities.
[ Stamp of On Track Innovations Ltd. and signature ]
[ Letterhead of Israel Land Administration ]
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3. Signing of long-term lease agreement
(a) Provided that the Entrepreneur shall fulfill the undertakings
thereof under this contract, on the dates fixed therefor in the
contract, the Administration undertakes to sign with the
Entrepreneur only, and the Entrepreneur undertakes to sign with
the Administration, a long-term lease contract (hereinafter: the
"Lease Contract") for a period of 49 years starting on the Date
of Approval of the Transaction (hereinafter: the "Term of the
Lease") for the Lot and the Buildings.
(b) The Lease Contract shall determine:
(1) The Term of the Lease, the Rate of Utilization, the Basic
Value of the Lot and the Basic Index under the Lease
Contract shall be as provided in this development
contract.
(2) The purpose of the lease shall be identical to the Purpose
of the Allocation as provided in this development
contract.
(3) The payments made to the Administration pursuant to
Section 4 of this development contract shall be deemed as
payment on account of the rent which shall be due to the
Administration pursuant to the Lease Contract.
(4) The Date of Approval of the Transaction shall be deemed as
the commencement of the Term of the Lease for all intents
and purposes, including with regard to the dates pursuant
to the Lease Contract, and with regard to possession,
liability for damages, and payment of taxes, mandatory
payments and development expenses.
(c) The remaining terms of the lease shall be in the form of the
terms and conditions of the attached Lease Contract.
(d) Without derogating from the aforesaid, the Entrepreneur
undertakes to sign the attached Lease Contract at the time of
signing of this development contract. The Lease Contract shall
become effective only after the Administration too shall sign
the same, which shall occur only if the Entrepreneur shall
fulfill the undertakings thereof pursuant to this development
contract, on the dates fixed therefor in this contract. So
long as the Administration shall not have signed the Lease
Contract, the terms thereof shall not be binding upon the
parties, and the Entrepreneur's sole signature on the Lease
Contract shall confer thereon no right thereunder. The date on
which the Administration shall sign the said contract shall be
deemed as the date of signing of the Lease Contract.
[ Stamp of On Track Innovations Ltd. and signature ]
[ Letterhead of Israel Land Administration ]
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(e) The provisions of this Section 3 notwithstanding, if the
Entrepreneur is a "Contractor" - as defined below - it shall
be entitled, within one year only after the Development
Period, to transfer its rights to the entity for whom the
Entrepreneur shall have constructed Buildings or apartments on
the Lot, and which shall be referred by the Entrepreneur to
the Administration; in such a case, the Administration shall,
only within the said year, sign the Lease Contract for the Lot
and the Buildings or for the apartments to be built on the
Lot, as the case may be, with whomever shall be referred
thereto by the Entrepreneur as aforesaid, and all provided
that all of the following conditions shall be met:
(1) The Entrepreneur shall have fulfilled the
undertakings thereof under this development contract.
(2) This development contract shall not have been
terminated for any reason.
(3) No limitation shall be imposed on whomever shall be
referred as aforesaid to the Administration in
accordance with the provisions of Section 12(c)
hereunder with regard to his engagement with the
Administration in the Lease Contract, and he shall
further fulfill every fundamental condition precedent
in the preamble to this contract.
Subject to all of the conditions mentioned above in this
subsection, the Contractor shall not be obligated to sign the
Lease Contract itself, and on the date of signing of this
development contract it shall be entitled to merely initial the
attached lease contract, which shall be used as an example only
for the Lease Contract to be signed as aforesaid in this
subsection.
For the removal of doubt, it is hereby explicitly agreed that the
foregoing provisions in this subsection do not constitute an
undertaking which the Administration is taking upon itself for
the benefit of an entity which is not a party to this development
contract, and they shall confer no right vis-a-vis the
Administration upon any entity which is not a party to this
development contract.
One year after the Development Period, the Entrepreneur shall
sign a Lease Contract for the Lot and for each one of the
Buildings or apartments for which the Entrepreneur shall have
referred no person to the Administration for the signing of a
Lease Contract as aforesaid, and/or a Lease Contract for the Lot
and for each one of the Buildings or apartments which shall not
have been leased by the Administration to the entity referred
thereto by the Entrepreneur due to the foregoing limitation
and/or non-compliance with a fundamental condition precedent.
[ Stamp of On Track Innovations Ltd. and signature ]
[ Letterhead of Israel Land Administration ]
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In this subsection -
"Contractor" - an Entrepreneur which shall have received, in
the preamble to this development contract, the
Administration's explicit consent to that
Buildings or apartments to be constructed thereby
pursuant to this development contract shall be
leased to others as per the Entrepreneur's
instruction to the Administration, provided that
such Entrepreneur is a registered contractor in
accordance with the Act for the Registration of
Contractors for Construction-Related Engineering
Work, 5729-1969, or a housing company recognized
as such by the Ministry of Building and Housing.
(1) The Entrepreneur declares that it has read the Lease
Contract, has understood its contents and agrees to all of
the terms and conditions thereof and to the conditions of
Subsection (d) or (e) above, as the case may be.
4. Consideration
(a) In consideration for the Administration's undertakings, the
Entrepreneur shall pay the Administration the payments specified
in the preamble, under the definition of "Consideration".
(b) On the date of signing of the contract, the Entrepreneur shall
furnish the Administration with confirmation that the amounts
mentioned in Subsection (a) above have been credited to the
Administration by way of a deposit.
5. The Entrepreneur's undertakings in connection with planning, building
and registration
The Entrepreneur hereby undertakes:
(a) To prepare and submit to the Administration, for the approval
thereof, the building plans of the Buildings which it wishes to
build on the Lot, a measurement map of the Lot drawn by a
certified surveyor and any other document required for the said
construction (hereinafter: the "Plans" or the "Building Plans"),
no later than the Date for Submittal of the Plans stated in the
preamble.
(b) To submit to the competent planning authorities only such
Building Plans as shall have been approved by the Administration
and to do anything necessary to lawfully obtain a building permit
from the competent planning authorities - and all immediately
upon receipt of the Administration's approval of the Building
Plans.
[ Stamp of On Track Innovations Ltd. and signature ]
[ Letterhead of Israel Land Administration ]
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(c) To start executing the approved Plans and to commence building
the Buildings pursuant to the building permit - no later than the
Date for Commencement of Construction stated in the preamble.
Failure to start construction on the said date shall be deemed as
a breach of this subsection, even if the Entrepreneur shall not
be entitled to lawfully start construction on the said date due
to the fact that it shall not have in its possession on such date
a lawful building permit.
(d) To finish casting the foundations for the Buildings in accordance
with the approved Plans - by the Date for Completion of the
Foundation Casting stated in the preamble.
(e) To finish building the frames and roofs of the Buildings,
including finishing the interior partitions to the point enabling
the identification of the internal division of the Buildings
(hereinafter: "Completion of Frame") by the Date for Completion
of the Frame stated in the preamble.
(f) To complete the construction of the Buildings to the point
enabling the occupation and/or operation and/or use thereof in
accordance with the Purpose of the Allocation by the end date of
the Development Period.
(g) To prepare and to finish, within the Development Period, all the
acts necessary to register the Lot as a separate registration
unit and to this end to perform, at its expense, any necessary
act, including: measurements, preparation of maps, consolidation,
parcelation, reparcelation, division, etc., so as to enable the
registration of the Lot at the Land Registration Bureau at the
end of the Development Period as a separate registration unit.
The Administration may notify the Entrepreneur, in advance and in
writing, that the Administration intends to perform all or any of
the said acts in lieu of the Entrepreneur, and in such a case the
Administration shall be entitled to perform all of the said acts,
in whole or in part, alone and at the Entrepreneur's expense, and
the Entrepreneur undertakes to pay the Administration any expense
incurred by the Administration in the performance of the said
acts, pursuant to a statement to be submitted thereto, within 30
days from the date of submittal of the statement.
(h) To prepare and conclude, within the Development Period, all the
acts required to register the Buildings as a condominium (or
condominiums) pursuant to the Land Act, 5729-1969, and to this
end to perform at its expense any act required, including the
preparation of plans, registration orders, bylaws etc. - if the
Administration shall require the Entrepreneur to register the
Buildings as a condominium as aforesaid.
The Administration may notify the Entrepreneur, in advance and in
writing, that the Administration intends to perform all or any of
the said acts in lieu of the Entrepreneur, and in such a case the
Administration shall be entitled to perform the said acts, in
whole or in part, alone and at the Entrepreneur's expense, and
the Entrepreneur undertakes to pay the Administration any expense
incurred by the Administration in the performance of the said
acts, pursuant to a statement to be submitted thereto, within 30
days from the date of submittal of the statement.
[ Stamp of On Track Innovations Ltd. and signature ]
[ Letterhead of Israel Land Administration ]
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(i) To appear at the offices of the Administration and/or at any
other location, as needed, on a date to be coordinated thereby
with the Administration in advance, which shall be no later
than the end of the Development Period, and to sign any
document, note, certificate, etc., as required in order to
register the lease of the Lot and the Buildings constructed
thereon and/or any unit in the condominium, registered as
aforesaid, as the case may be. In the event that the
Entrepreneur shall have failed to coordinate a date as
aforesaid, the Entrepreneur undertakes to appear on any date
determined and notified by the Administration.
(j) To revoke any lease, encumbrance or note registered at the
Land Registration Bureau, if any, in the cases in which this
agreement shall have been signed following a change of
designation and/or utilization transaction and the
Entrepreneur shall also be the registered lessee, and to
perform all the acts required for the registration of the
lease as provided in Subsection (i) above.
The act of revocation as aforesaid shall be performed within
the Development Period, and the performance thereof shall
constitute a condition precedent to the signing of a lease
agreement with the Entrepreneur or with whomever shall be
referred thereby to the Administration as provided in Section
3 above.
The Administration may notify the Entrepreneur, in advance and
in writing, that the Administration intends to perform all or
any of the said acts in lieu of the Entrepreneur, and in such
a case the Administration shall be entitled to perform all of
the said acts, in whole or in part, alone and at the
Entrepreneur's expense, and the Entrepreneur undertakes to pay
the Administration any expense incurred by the Administration
in the performance of the said acts, pursuant to a statement
to be submitted thereto, within 30 days from the date of
submittal of the statement.
(k) In the event that the Entrepreneur shall breach any of the
undertakings specified in Subsections (g)-(j) above, then,
without derogating from the provisions of this contract in
connection with the breach of the said undertakings, such
undertakings shall continue to be in effect and to bind the
Entrepreneur also after the Development Period shall expire,
and for the breach thereof the Administration shall be
entitled to the remedies and redress provided for under any
law also after the Development Period shall expire.
[ Stamp of On Track Innovations Ltd. and signature ]
[ Letterhead of Israel Land Administration ]
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6. Payment of taxes and other mandatory payments
The Entrepreneur undertakes to timely pay all governmental, municipal
and other taxes, municipal property taxes, various mandatory payments
and all the development taxes and fees of any kind, imposed by law on
land and/or owners and/or occupants of land, which shall be imposed on
the Lot and/or in connection therewith, for the entire duration of the
Development Period.
The Entrepreneur undertakes to pay value added tax as set out in the
law, as applicable to each one of the payments imposed on the
Entrepreneur under this contract, according to the rate of the value
added tax on the date of payment thereof.
The Entrepreneur undertakes to reimburse the Administration, upon
demand, for any payment as aforesaid, if paid by the Administration,
within 30 days from the date of demand.
7. Payment of development expenses
The Entrepreneur undertakes to bear all the development expenses,
whether imposed on the Lot or incurred therefor or for the use thereof
on the date of signing of this contract on prior thereto or after the
date of signing of this contract, or paid by the Administration prior to
the date of signing of this contract. The Entrepreneur undertakes to pay
the development expenses upon the demand of the Administration and/or of
the entity authorized on its behalf to demand the payment thereof and/or
upon the demand of the entity which shall have incurred the development
expenses.
The Entrepreneur undertakes to reimburse the Administration, upon
demand, for any payment paid by the Administration for the development
expenses, within 30 days from the date of the Administration's demand.
In this section, "development expenses" - expenses and/or levies and/or
fees of any kind due to the development of infrastructure and/or
superstructure and/or any other structural systems which are a condition
to the development of the Lot or to construction thereon, including
clearing access routes to the Lot, digging channels, paving roads and
sidewalks, lighting, water, sewage, etc.
[ Stamp of On Track Innovations Ltd. and signature ]
[ Letterhead of Israel Land Administration ]
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8. Incompatibility and vacation of occupants
(a) The Entrepreneur hereby declares that it has seen the Lot, has
examined the physical and legal condition thereof, and has
found them to be compatible with all of its needs for the
purpose of fulfilling the contract.
(b) Without derogating from the generality of the aforesaid, if
occupants are found on the Lot:
(1) The Administration shall bear no liability for the
vacation of the occupants and/or for the vacation
expenses, in any form or manner.
(2) The presence of occupants on the Lot, as aforesaid, shall
not serve as a cause and/or justification for the
non-fulfillment of any provision of the contract in
general, and for compliance with the time table under this
contract in particular.
(3) The Entrepreneur shall be entitled, no later than three
months after the date of signing of this contract, to
notify the Administration that due to the presence of
occupants on the Lot, it is interested in terminating the
contract. In such a case, and provided that the fact of
the presence of occupants as aforesaid is confirmed by the
Administration, the Administration will be prepared to
agree to terminate the contract without liquidated
damages, and the termination shall be subject to the
provisions of Section 13 below, mutatis mutandis.
9. Liability during the Development Period
The Entrepreneur undertakes, throughout the entire Development Period,
to keep the Lot in an orderly condition and to maintain it as would an
owner who maintains his property, to comply with the provisions of any
law, to bear sole and full responsibility vis-a-vis the Administration
and any third party for all acts and/or omissions of the Entrepreneur on
the Lot and/or for any other act and/or omission in connection with the
contract, and to pay any fine and/or damages and/or payment and/or any
other expenses of any kind, to be imposed and/or due and payable due to
the acts and/or omissions of the Entrepreneur, as aforesaid, and/or as a
result thereof.
In the event that the Administration shall bear any payment due to such
act and/or omission and/or as a result thereof, the Entrepreneur shall
compensate and/or indemnify the Administration for any such payment,
within 14 days after being required to do so.
10. Interest and indexation for payments in arrears
(a) Any payment due from the Entrepreneur under this contract to the
Administration, and not paid thereby on time, shall be paid by
the Entrepreneur to the Administration in addition to interest
and/or indexation to be calculated until the date of actual
payment, at the Administration's standard rates at the time of
actual payment with regard to payments in arrears, and without
derogating from the Administration's other rights under the
contract or any law.
[ Stamp of On Track Innovations Ltd. and signature ]
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(b) Any payment made by the Entrepreneur shall be credited according
to the following order: collection expenses, interest,
differences of indexation and finally principal.
11. Prohibition of transfer and encumbrance of rights
(a) The permission granted to the Entrepreneur under the contract is
personal only, and the Entrepreneur may not transfer its rights
under the contract, in whole or in part, in any form or manner,
either directly or indirectly, and/or lease the Lot and/or
surrender the possession or entrust the use thereof, or part
thereof, to others.
(b) Without derogating from the provisions of Subsection (a) above
and in addition thereto, if the Entrepreneur is an "association",
the Entrepreneur - and any association holding a right in an
association in the Entrepreneur - shall be prohibited from
performing any act in an association throughout the Development
Period.
In this subsection:
"Association" - as defined from time to time in the Land
Appreciation Tax Act, 5723-1963 (hereinafter:
"L.A.T. Act"), including a non-registered
partnership.
"Right in an
association" - as defined from time to time in the L.A.T. Act.
"Holder",
"Holding" - as "Holding" is defined from time to time in the
Securities Act, 5728-1968; the terms used in the
definition of "Holding" in the said act shall be
interpreted as they are defined from time to time
in the said act.
"Act in an
association" - as defined in the L.A.T. Act, including any
change in an Entrepreneur which is a registered
or non-registered partnership, or any change in
an Entrepreneur which is an association whose
capital is in a form other than stock, resulting
from a joining or retirement of a person
therefrom, and including any change in the
proportionate share of a partner in the capital
of such partnership or association.
(c) Without derogating from the provisions of Subsections (a)-(b)
above, and in addition thereto, the Entrepreneur may not pledge
and/or encumber its rights under the contract and the Lot in any
form or manner, without the prior written consent of the
Administration thereto.
[ Stamp of On Track Innovations Ltd. and signature ]
[ Letterhead of Israel Land Administration ]
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The Entrepreneur further undertakes not to register a warning
note at the Land Registration Bureau pursuant to the Land Act,
5729-1969 with regard to its rights under the contract, without
the prior written consent of the Administration thereto. In no
case will the Administration give its consent to the registration
of such warning note, so long as the Lot shall not have been
registered as a separate registration unit.
(d) Any breach by the Entrepreneur of any provision of this section
shall be deemed as a fundamental breach of the contract thereby,
and the Administration shall be entitled to terminate the same at
any time due to such breach.
12. Breach and termination of the contract
(a) The parties hereby agree that the dates stated in the contract
and the terms and conditions stipulated in Sections 4, 5 and 11
of the contract are principal and fundamental terms of the
contract, the breach of which, or the breach of any of which,
shall be deemed as a fundamental breach of the contract.
(b) Without derogating from the provisions of Subsection (a) above,
it is hereby agreed that upon any of the following breaches, the
Administration shall be entitled to terminate the contract
immediately upon the breach, and to notify the Entrepreneur by
registered post of the termination (hereinafter: "Notice of
Termination"):
(1) If the Entrepreneur shall change or cause a change in the
Purpose of the Allocation or the Designation, or shall use
the Lot in any manner incompatible therewith.
(2) If the Entrepreneur shall breach another term or condition
of the contract, and the breach is irreparable and/or, if
the breach is reparable, the Entrepreneur did not rectify
or remove the same within 3 months from the date of being
required to do so by the Administration in writing.
(3) If one of the fundamental conditions precedent in the
preamble to this contract shall have been breached.
(4) If the Lot shall have been surrendered to the Entrepreneur
pursuant to the recommendation of the Ministry of Building
and Housing, and the Entrepreneur shall not have commenced
construction on the date fixed in the contract between
itself and the Ministry of Building and Housing, and the
said Ministry shall given the Administration notice to
[ Stamp of On Track Innovations Ltd. and signature ]
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this effect in a letter.
(c) Without derogating from all of the aforesaid, if the Entrepreneur
or the person for whom the Entrepreneur is acting is a foreign
citizen, the contract shall be deemed to have been fundamentally
breached by the Entrepreneur, and the Administration shall be
entitled to terminate the contract due to such breach.
In this subsection, "foreign citizen" - anyone who is not one of
the following:
(1) An Israeli citizen;
(2) A new immigrant under the Law of Return, 5710-1950, who
has not given a declaration pursuant to Section 2 of the
Citizenship Act, 5712-1952;
(3) A person entitled to a new immigrant visa or a new
immigrant certificate under the Law of Return, 5710-1950,
who has received, in lieu thereof, a visa and license for
temporary residence as a potential new immigrant pursuant
to the Entry to Israel Act, 5712-1952;
(4) A corporation controlled by an individual who fulfills the
criteria listed in paragraphs (1)-(3) above, or by more
than one such individual.
In this paragraph, "control" shall mean one of the following:
(a) The holding - directly or indirectly, by one person or
corporation or by more than one person or corporation of
50% or more of the par value of the corporation's issued
capital stock;
(b) The holding - directly or indirectly, by one person or
corporation or by more than one person or corporation of
one half or more of the corporation's voting power;
(c) The right to directly or indirectly appoint one half or
more of the corporation's directors, whether the said
right is held by one person or corporation or by more than
one person or corporation.
This subsection shall not apply to an Entrepreneur who shall have
received approval for the aforesaid, in advance and in writing,
from the Chairman of the Israel Land Council.
(d) Without derogating from the aforesaid, it is hereby agreed that
if the Administration shall decide not to terminate the contract,
despite its right to do so, the Administration shall be entitled
to demand and receive from the Entrepreneur land value
differences or an appropriate usage fee or liquidated damages,
whichever is the higher of the three, for the period from the
Date of Approval of the Transaction until the date of the
Administration's decision not to terminate the contract and/or to
grant an extension for the performance thereof (hereinafter: the
"Decision Date").
[ Stamp on On Track Innovations Ltd. and signature ]
[ Letterhead of Israel Land Administration ]
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For this section:
"Land value differences": the difference between the full payment
which the Entrepreneur would have been required to pay for the
Lot, had it been allocated on the Decision Date, according to the
Administration's standard terms and conditions at such time, and
the amounts paid to the Administration by the Entrepreneur for
the Lot, linked to the consumer price index from the date of
payment thereof until the Decision Date.
"Appropriate usage fee": a usage fee for the period from the
commencement of the Development Period until the Decision Date,
at the annual rate of 6% of the value of the lot as of the
Decision Date, as determined by the Governmental Assessor.
"Liquidated damages": liquidated damages at the rate of 15% of
the value of the Lot as of the Decision Date.
13. The parties' undertakings upon termination of the contract
(a) Upon termination of the contract as provided in Section 12 above,
the Entrepreneur shall be obliged:
(1) To vacate the Lot immediately.
(2) To return the same immediately to the Administration, it
being vacant of any object and person and free of any
encumbrance or third party right.
(3) To demolish the Buildings, the fences, the plantations and
any other fixtures constructed by the Entrepreneur on the
Lot (hereinafter: the "Fixtures"), to remove the rubble
and reinstate the Lot to its former condition, as being
prior to the construction of the Fixtures - if required to
do so by the Administration.
In the event that the Entrepreneur shall fail to discharge
its obligations under this subsection, the Administration
shall be entitled - but not obliged - to perform all of
the said acts alone at the Entrepreneur's expense, and to
deduct all the expenses incurred thereby in connection
with its acts from the sums paid by the Entrepreneur to
the Administration under the contract; in any event, even
if the Administration shall not perform any of the said
acts, the Entrepreneur shall be entitled to no
compensation and/or consideration for its investments
and/or expenses in connection with the Fixtures.
(4) To pay the Administration all of the following sums:
[ Stamp of On Track Innovations Ltd. and signature ]
[ Letterhead of Israel Land Administration ]
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(a) An appropriate usage fee for the period from the
date of commencement of the Development Period
until the return of the Lot, at the annual rate of
6% of the value of the Lot as of the date of
termination, as determined by the Governmental
Assessor;
(b) All the taxes and mandatory payments specified in
Section 6 above, which are due and payable for the
period mentioned in paragraph (a) above;
(c) The aforementioned vacation expenses;
(d) Liquidated damages - at the rate of 15% of the
Basic Value of the Lot in addition to differences
of indexation between the Basic Index and the
latest consumer price index known on the date of
payment.
(b) It is hereby agreed that if the Entrepreneur shall not be
required to demolish the Fixtures or any part thereof - as stated
in Subsection (a)(3) above - and the Lot is returned to the
Administration together with the Fixtures or part thereof, the
Entrepreneur shall be entitled to receive the value of the
Fixtures, as determined by the Governmental Assessor as of the
date of termination of the contract, from the Administration.
(c) Upon the return of the Lot as aforesaid, the Administration shall
repay the Entrepreneur any amount paid thereby to the
Administration under this contract, and any amount due to the
Entrepreneur, if any, pursuant to the provisions of Subsection
(b) above.
The repayment of the said amounts shall be made by the
Administration after deduction of all the amounts specified in
paragraph (a)(4) above.
Nothing in the aforesaid shall derogate from the Administration's
rights and from any remedy to which it is entitled under this
contract and any law.
(d) The provisions of Subsections (b) and (c) above notwithstanding,
in the case of termination of the contract pursuant to Section
12(c) above, and upon the return of the Lot as provided in
Subsection (a) above, the following provisions shall apply:
The Administration shall forfeit all the amounts paid by the
Entrepreneur as defined in Section 13(a)(4) above, and,
furthermore, the provisions of Subsection (b) above shall not
apply thereto - and all as liquidated damages in such a case.
[ Stamp of On Track Innovations Ltd. and signature ]
[ Letterhead of Israel Land Administration ]
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An Entrepreneur as aforesaid shall be entitled - upon the
condition precedent that it shall have fulfilled all the
provisions of paragraphs (1)-(3) of Subsection (a) above - to
apply to a committee to be appointed for this matter by the
Israel Land Council, which shall be entitled, if convinced that
such Entrepreneur acted in good faith, to reduce the forfeited
amounts to the amount of the liquidated damages pursuant to
Subsection (a)(4) above only and/or to determine how much will be
returned to such Entrepreneur pursuant to Subsection (b) above.
The committee's decision shall be final.
The provisions of this subsection shall apply also if other
provisions shall be determined for this matter in any law.
(e) With the exception of what is due to the Entrepreneur pursuant to
Subsections (c) or (d), as the case may be, the Entrepreneur or
another acting on its behalf shall make no other claim, monetary
or otherwise, to the Administration or to another, including a
claim for its expenses, losses or investments in connection with
this contract.
(f) Upon termination of the contract as set out in Section 12 above,
the Administration shall be entitled to take sole possession of
the Lot and to vacate therefrom any object, building and person
found thereon.
14. Changes in the boundaries and area of the Lot
(a) The Entrepreneur declares that it is aware that the area and
boundaries of the Lot are not final and that changes may occur
therein.
(b) The parties explicitly agree that if the area and/or boundaries
of the Lot shall change as a result of changes in the Plan under
the Planning and Building Act, 5725-1965, a land arrangement, the
preparation of a measurement map for purposes of registration,
etc., the Entrepreneur undertakes to deem the Lot, with its new
area and/or boundaries, as the Lot which is the subject matter of
this contract for all intents and purposes, and with the
exception of the provisions of Subsection (c) below, the
Entrepreneur undertakes to make no claims or demands against the
Administration due to such change and anything resulting
therefrom.
(c) If the Basic Value of the Lot shall change due to a change in the
boundaries and/or area of the Lot, the amounts stated in Section
4 above shall be amended proportionately to the change in the
Basic Value of the Lot, and the difference shall be paid to the
party entitled thereto immediately upon demand, in addition to
interest and/or indexation from the Date of Approval of the
Transaction until the date of actual payment, according to the
Administration's standards on the date of payment.
[ Stamp of On Track Innovations Ltd. and signature ]
[ Letterhead of Israel Land Administration ]
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15. Natural resources, archeological finds, materials and trees
(a) The Entrepreneur hereby declares that it is aware that all
natural resources such as: oil, gas, water springs, coal and
metal deposits, marble, stone, sand and limestone quarries, and
any other minerals as well as archeological finds, materials and
trees found in the ground of the Lot are not included in the
allocation under this contract and the terms of the permission
under this contract do not apply thereto. The Entrepreneur shall
enable the Administration to extract or otherwise utilize the
said natural resources, archeological finds, materials and trees
in accordance with the relevant laws and this contract.
(b) The Entrepreneur shall not excavate the Lot over and above the
degree necessary for the achievement of the purpose of this
contract.
(c) The Entrepreneur shall not sell materials extracted thereby from
the Lot, since they are the property of the Administration,
without the prior written consent of the Administration, nor will
the Entrepreneur remove trees found on the Lot without the prior
written consent of the competent authority and of the
Administration, which may condition their consent upon payment
for the trees.
In the event that the Entrepreneur shall breach this prohibition,
the Administration shall be entitled to demand damages therefrom.
The amount of the damages shall be determined in accordance with
the price of the materials sold or the value of the trees
removed, according to the Administration's standards at the time
of breach of the prohibition, and according to the quantity of
materials or trees determined by the Administration. The
Entrepreneur undertakes to pay the damages, as determined by the
Administration in accordance with the aforesaid, within 14 days
from the date of dispatch of the demand for payment.
16. Right of entry
The permission granted to the Entrepreneur under the contract does not
confer upon it the right of sole possession of the Lot, and the
Entrepreneur declares that it is aware that the Administration or its
representatives may enter the Lot at any time for any purpose. Without
derogating from the aforesaid, the Administration may pass conduits
through the Lot, either alone or through others, for water, channels,
sewage and gas, erect electricity or telephone poles, pull electricity,
telephone and/or other lines, and all in accordance with plans approved
by the competent authorities, and the Entrepreneur shall enable the
Administration or others on its behalf to enter the Lot and to perform
the work required therefor and all repairs in connection therewith
needed from time to time. The Administration undertakes to compensate
the Entrepreneur for any damage to be caused to the Entrepreneur due to
the performance of the said work.
[ Stamp of On Track Innovations Ltd. and signature ]
[ Letterhead of Israel Land Administration ]
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17. The Tenants Protection Act
Neither the Tenants Protection Act [Consolidated Version], 5732-1972,
nor any other law replacing or supplementing the same shall apply to
this contract. Without derogating from the aforesaid, it is hereby
declared that the Entrepreneur has paid the Administration no key money
for this contract, in any form or manner, and that the payments under
this contract and the Entrepreneur's investments in the Lot, if any,
shall not be deemed as the payment of key money, for which reason too
neither the Tenants Protection Act [Consolidated Version], 5732-1972,
nor any other law replacing or supplementing the same shall apply to
this contract.
18. Preservation of the Administration's rights
(a) No failure by the Administration to exercise any of the rights
conferred thereon under the contract shall be deemed as a waiver
of such right.
(b) No modification, amendment, addendum, deletion, waiver or
extension of, to and in the terms of this contract (hereinafter:
"Modifications"), shall be binding upon the parties unless made
in writing and signed by both parties. No Modifications of or
deletions in the text of the contract or in the text of any
document attached hereto shall be binding upon the parties unless
both parties shall have signed the same by a full signature.
In this paragraph -
"Signature" - with regard to the Administration and an
Entrepreneur which is a corporation, including a stamp.
(c) The receipt of any payment by the Administration shall not, ipso
facto, constitute a recognition of any rights of the Entrepreneur
and shall confer thereupon no right not granted thereto under the
contract.
19. Stamp duty
The expenses of stamping this contract, if applicable, and 5 copies
thereof, shall be borne by the Entrepreneur.
20. Notices
Notices under this contract shall be sent by registered post.
Any notice sent by one party to the other by registered post according
to the addresses stated in the preamble to this contract, shall be
deemed to have been delivered to the addressee five days after dispatch
thereof.
[ Stamp of On Track Innovations Ltd. and signature ]
[ Letterhead of Israel Land Administration ]
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21. Effectiveness of the contract
This contract shall be of no effect so long as it is not signed by both
parties. After the signing thereof by both parties, the contract shall
be effective as of the Date of Approval of the Transaction.
In this paragraph -
"Signature" - in initials on the margins of the last line of the
preamble and a full signature at the end of the contract,
and for an Entrepreneur which is a corporation, including
a stamp, and for the Administration - including one stamp
imprinted together on the pages of the contract.
22. Headings
The section headings in the contract are intended for the sake of
convenience only, and shall not be used for the interpretation hereof.
[ Stamp of On Track Innovations Ltd. and signature ]
[ Letterhead of Israel Land Administration ]
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In witness whereof, the parties have hereto set their hands:
The Administration: The Entrepreneur:
1. Name .............................. 1. Name Xxxxx Xxxx
Title ............................. I.D. 022571046
Signature ......................... Signature (-)
2. Name XXXXX XXX XXXXXX 2. Name Xxxx Xxxxxx
Title DISTRICT TRANSACTION I.D. 005877527
COMMISSIONER Signature (-)
Signature (-)
[Stamp of the Israel Land Administration ] [Stamp of On Track Innovations Ltd.]
Certifier:
I, the undersigned, do hereby certify that I have identified the signatories in
the foregoing "Entrepreneur" column by identity certificates presented to me,
and that they signed this contract in my presence.
Name XXXX XXXXXXXXX, ADV. Title _______ Verifier's signature (-)
[ Stamp, license No. 16117)
When the Entrepreneur is a corporation/company/association, fill out and sign:
I, advocate _________________, legal counsel to On Track Innovations Ltd.,
public company No. 520042862, do hereby certify that on ____________, appeared
before me Messrs.:
1. Xxxx Xxxxxx... I.D. 005877527
2. Xxxxx Xxxx.... I.D. 022571046
3. _____________. I.D. _______________
who are authorized to sign and commit on behalf of the said company, and who,
after I identified them by an identity certificate they presented to me, signed
this contract in my presence.
October 4, 1998 [stamp: XXXX XXXXXXXXX, ADV., LICENSE NO. 16117 and signature]
--------------- --------------------------------------------------------------
Date Signature and stamp of attorney
[ Stamp of On Track Innovations Ltd. and signature ]
[ Letterhead of Israel Land Administration ]
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[ Text accompanying physical plan ]
Israel Land Administration
Northern District
Mapping and Surveying Department
================================================================================
Work No. 691/113
================================================================================
District: NORTH
Division: Z'FAT
Town / Village: ROSH XXXX
Local Council:
Regional Council:
Place: ROSH XXXX
Blocks: 13953 | | |
Parcels: [illegible] 63, 65-68, 73
Scale: 1:1250
Purpose of plan: ON TRACK INNOVATIONS LTD.
LOTS: 17/4, 117H-119H
Area: 6,500 DUNAM
[ Stamp and signature of X. Xxxxxxxxxx, Certified Surveyor, License No. 423 [??
- unclear, hidden by signature], District Commissioner of Mapping and Surveying,
X.X.X. Northern District ]
[ Stamp and signature: Israel Land Administration, on behalf of the State ]
[ Letterhead of Israel Land Administration ]
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Comments:
1. The encircled numbers indicate parcels by block.
2. This plan is based on registered block map [unclear word] No. 13953.
This plan is based on plan for registration purposes No. _______
This plan is based on [unclear word] block map No. __________
This plan is based on aerial photo plan __________
This plan is based on detailed zoning plan No.[illegible], effective
(in deposit) August 28, 1995.
This plan is based on a surveying plan by Certified Surveyor Pinkas
and Son No. 489 of January 13, 1994.
This plan is based on a measurement by the Mapping and Surveying
Department of the X.X.X. Northern District dated __________
Certified Surveyor _________
3. The plan was drawn by Xxxx X. on September 27, 1995
Checked by __________ on ____________
4. Changes in the plan:
Change made on August 11, 1998 by Tova, checked by ______________
Change made on ____________ by ____, checked by ______________
Change made on ____________ by ____, checked by ______________
